Supreme Judicial Court (January 16, 2009)

While a search warrant must be executed on the premises within the required seven days, there is no violation of M.G.L. c. 276, §3A if the police have not completed the forensic analysis of the seized computer(s) and other electronic data storage devices within the prescribed period.

The defendant was convicted of child pornography in violation of G.L. c. 272, §29C. On appeal, he asserted multiple errors including the allegation that the search of his computer over a period of months was unreasonable and in violation of c. 276, §3A, which states:

Every officer to whom a warrant to search is issued shall return the same to the court by which it was issued as soon as it has been served and in any event not later than seven days from the date of issuance thereof, with a return of his doings thereon; provided, however, that a justice of the superior court may at any time receive complaints and issue search warrants returnable in seven days before a district court named in such warrant and in that event the officer shall make his return to such district court as directed. (emphasis added).

The SJC held that the defendant's motion to suppress the digital evidence should have been granted because the facts did not rise to the level of probable cause. While it was unnecessary for the SJC to decide the question of whether the search violated c. 276, §3A, they exercised discretion to consider the issue.

As stated in Comm. v. Cromer, 365 Mass. 519 (1974), the SJC held, "[The] required warrant return procedures are ministerial, and failure to comply therewith is not ground for voiding an otherwise valid search. . . . In this case, the critical question is whether the search warrant was executed within seven days of its issuance." As similar provisions and rules have held in other jurisdictions, the police do not need to complete the forensic analysis of a seized computer and other electronic data storage devices within the prescribed period for executing a search warrant. Because a written return listing the devices to be examined was filed seven days after the search warrant issued, there was no violation of c. 276, §3A.